United States District Court, S.D. Ohio, Western Division, Cincinnati
Timothy S. Black, District Judge
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
Michael R. Merz, United States Magistrate Judge
habeas corpus case, brought by Petitioner Ahmad Shalash with
the assistance of counsel, is before the Court on
Petitioner's Objections (ECF No. 21) to the Magistrate
Judge's Report and Recommendations which recommended
dismissal (the “Report, ” ECF No. 18). Judge
Black has recommitted the case to the Magistrate Judge for
reconsideration in light of the Objections (Recommittal
Order, ECF No. 22).
Petition pleads four grounds for relief and Petitioner
objects to the Report's conclusions as to each one. They
are considered here seriatim.
One: Sufficiency and Weight of the Evidence
First Ground for Relief, Shalash asserts his conviction is
not supported by sufficient evidence and is against the
manifest weight of the evidence. The Report recommended
dismissing the manifest weight claim as not cognizable in
habeas corpus (ECF No. 18, PageID 1200). Petitioner does not
object to that conclusion.
Report concluded the sufficiency of the evidence claim was
procedurally defaulted because, although it was argued
unsuccessfully in the Ohio First District Court of Appeals,
it was not fairly presented thereafter to the Supreme Court
of Ohio (ECF No. 18, PageID 1201). In his Reply, Petitioner
conceded he did not present insufficiency of the evidence as
a proposition of law on his Supreme Court appeal, but noted
his comment on how little evidence there was in his general
argument for discretionary review (ECF No. 15, PageID 1171).
The question, then, is whether a general argument of the sort
Shalash made in his Memorandum in Support of Jurisdiction is
sufficient to fairly present an issue, particularly when an
appellant is represented by counsel.
Report concludes the sufficiency issues was not fairly
presented. In the Memorandum in Support of Jurisdiction,
Shalash's counsel never made the explicit claim the
evidence was insufficient, never asserted the First District
was in error for rejecting this assignment, and never cited
any of the relevant Supreme Court precedent, Jackson v.
Virginia, 443 U.S. 307 (1979), and its progeny.
the general argument was enough, Petitioner relied on
Peterson v. Miller, No. 1:16-cv-509, 2017 U.S. Dist.
LEXIS 215391 (N.D. Ohio Dec. 7, 2017). The Report
distinguishes Peterson in that the Northern District
was construing a pro se pleading which is entitled
to liberal construction under Supreme Court precedent
(Report, ECF No. 18, PageID 1202, citing Estelle v.
Gamble, 429 U.S. 91, 106 (1976). Even in
Peterson the court refused to find a liberally
construed proposition of law raised a federal constitutional
Objections disagree with the Report's reading of
Peterson (ECF No. 21, PageID 1226). Having
re-examined Peterson, the Magistrate Judge agrees it
can be read as finding Peterson preserved a sufficiency of
the evidence claim in the Ohio Supreme Court by the words he
used, pro se, in the relevant propositions of law.
Magistrate Judge Greenberg wrote:
Aside from a few references to "Fair Trial,"
"Due Process," and "Equal Protection,"
(Doc. No. 13-1, Exh. 17 at 242), Peterson did not couch the
legal arguments he made in his jurisdictional memorandum to
the Ohio Supreme Court in constitutional terms. Nor did he
cite to any provision of the Constitution or any federal or
state-court case applying federal constitutional law to
support them. On the other hand, again liberally construing
his state-court pleading, Peterson did present factual
arguments that would advance a federal sufficiency-of
-the-evidence claim, such as alleging a lack of physical
evidence linking him to the crimes. The Court finds,
therefore, that Peterson fairly presented this claim to Ohio
courts, and it is preserved for federal habeas review.
2017 U.S. Dist. LEXIS 215391 at *46. Shalash's counsel
says Peterson is not limited to pro se
litigants. But it is only pro se litigants who are
entitled to the liberal construction the Peterson
court said it was giving to the pro se Memorandum in
Support of Jurisdiction. Pleadings prepared by licensed
attorneys are not entitled to that “liberal
addition, the words the Peterson court was
construing are different from the words involved here. In
Peterson the word “insufficient” was
used in the second proposition of law and the words
“without [any] facts of [sic] law” were used in
the first proposition in the Ohio Supreme Court. Here there
are no words adverting to the sufficiency of the evidence in
any of the propositions of law, prepared by counsel, that
were filed in the Supreme Court of Ohio.
these distinctions aside, the Magistrate Judge also notes
that the Peterson decision is not controlling
authority, but rather the decision of a sister court,
considered only for its persuasiveness.
argues that even if he has procedurally defaulted on his
sufficiency of the evidence claim, his default is excused by
his actual innocence. While recognizing that new evidence of
actual innocence can excuse a procedural default under
Schlup v. Delo, 513 U.S. 298 (1995), the Report
noted that the only new evidence of actual innocence was the
affidavits of his two co-defendants, one of whom is the
mother of his children, recanting their trial testimony.
Recantation does not come within the types of new evidence
accepted by the Sixth Circuit. See Souter v. Jones,
395 F.3d 577, 590 (6th Cir. 2005), cited in the
Report at PageID 1203.
Objections criticize the Report for “summarily
dismiss[ing] the recanting affidavits without citing any law
which supports the Magistrate's contention that the
affidavits are unreliable.” (ECF No. 21, PageID 1227).
But as just noted, the Report cites Souter which
quotes Schlup on the types of new evidence which are
in general are strongly skeptical of affidavits recanting
sworn trial testimony. “Recanting affidavits and
witnesses are viewed with extreme suspicion.”
United States v. Willis, 257 F.3d 636, 645
(6th Cir. 2001); United States v.
Chambers, 944 F.2d 1252, 1264 (6th Cir.
1991); see also United States v. Lewis, 338 F.2d
137, 139 (6th Cir. 1964). Even if accepted,
recantation of trial testimony is generally not sufficient to
grant habeas relief absent constitutional error. Welsh v.
Lafler, 444 Fed. App'x 844, 850 (6th Cir.
2011). See general discussion to the same effect in Davis
v. Bradshaw, 900 F.3d 315 (6th Cir. 2018).
the procedural default of the sufficiency claim were put to
one side, Shalash would not be entitled to relief on the
merits of that claim. In order for a conviction to be
constitutionally sound, every element of the crime must be
proved beyond a reasonable doubt. In re Winship, 397
U.S. 361, 364 (1970).
[T]he relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt . . . . This
familiar standard gives full play to the responsibility of
the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence and to draw reasonable
inferences from basic facts to ultimate facts.
Jackson, 443 U.S. at 319; United States v.
Paige, 470 F.3d 603, 608 (6th Cir. 2006);
United States v. Somerset, 2007 U.S. Dist.
LEXIS 76699 * 4-5 (S.D. Ohio Oct. 12, 2007). This rule was
recognized in Ohio law at State v. Jenks, 61 Ohio
St.3d 259 (1991). Of course, it is state law which determines
the elements of offenses; but once the state has adopted the
elements, it must then prove each of them beyond a reasonable
doubt. In re Winship, 397 U.S. at 361.
cases such as Petitioner's challenging the sufficiency of
the evidence and filed after enactment of the Antiterrorism
and Effective Death Penalty Act of 1996 (Pub. L. No. 104-132,
110 Stat. 1214)(the “AEDPA”), two levels of
deference to state decisions are required:
In an appeal from a denial of habeas relief, in which a
petitioner challenges the constitutional sufficiency of the
evidence used to convict him, we are thus bound by two layers
of deference to groups who might view facts differently than
we would. First, as in all sufficiency-of-the-evidence
challenges, we must determine whether, viewing the trial
testimony and exhibits in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.
See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979). In doing so, we do not reweigh
the evidence, re-evaluate the credibility of witnesses, or
substitute our judgment for that of the jury. See United
States v. Hilliard, 11 F.3d 618, 620 (6th Cir. 1993).
Thus, even though we might have not voted to convict a
defendant had we participated in jury deliberations, we must
uphold the jury verdict if any rational trier of fact could
have found the defendant guilty after resolving all disputes
in favor of the prosecution. Second, even were we to conclude
that a rational trier of fact could not have found a
petitioner guilty beyond a reasonable doubt, on habeas
review, we must still defer to the state appellate
court's sufficiency determination as long as it is not
unreasonable. See 28 U.S.C. § 2254(d)(2).
Brown v. Konteh, 567 F.3d 191, 205 (6th
Cir. 2009). In a sufficiency of the evidence habeas corpus
case, deference should be given to the trier-of-fact's
verdict under Jackson and then to the appellate
court's consideration of that verdict, as commanded by
the AEDPA. Tucker v. Palmer, 541 F.3d 652, 656
(6th Cir. 2008); accord Davis v. Lafler,658 F.3d 525, 531 (6th Cir. 2011)(en
banc); Parkerv. Matthews, 567 U.S.
37, 43 (2012). Notably, “a court may sustain a
conviction based upon ...